Supreme Court term 2006/07: The Baby Ann adoption case

As has been kindly noted, this blog was dormant for several months. Before that, I wrote a bit about law. I'm studying for the Bar, so that was somewhat natural I suppose. Anyway, I propose to continue that trend by, over the course of a few articles, summarising some important Irish judgments handed down in the last six months or so. I will focus to begin with on the Supreme Court.

On November 13th, the Supreme Court unanimously reversed the High Court in N v Health Service Executive, referred to in the press as the 'Baby A' case. As readers may recall, a young couple had placed their child for adoption, but later (having married) decided that they wished to revoke their consent, as the law entitled them to do. The prospective adopters, who had custody of the child, brought legal proceedings, in order to have the High Court override the natural parents' decision. The High Court had granted them such an order, but this was overturned on appeal. Hardiman J held, reiterating what had been said in Re J. H. an Infant [1985] IR 375, that "such intervention may also be justified if it is established that there are compelling reasons why that the welfare of the child cannot be secured in the custody of the parents." Hardiman J's judgment also contained an interesting passage on notions of "children's rights" and a '"child-centred" approach to such matters:

"In the case of a young child, an approach to its welfare which is sometimes described as “child centred”, in a particular sense, in reality involves acting wholly or partly upon some third parties view of the interests of the child. It is, of course, difficult to criticise an approach denominated “child centred” or to fail to acknowledge imperatives denominated “the rights of the child”. But, especially in dealing with very young children who can express no meaningful views of their own, it is of great importance that terms such as those just mentioned should be thought through, should evoke an intellectual and not merely an emotional response, and that their actual content should be ascertained. A right conferred on or deemed to inhere in a very young child will in practice fall to be exercised by another on his or her behalf. In practice, therefore, though such a right may be ascribed to a child, it will actually empower whoever is in a position to assert it, and not the child himself or herself. The person actually asserting such a right may of course be a parent or guardian, but it might equally be a public authority, a stranger, or indeed the State itself."

Fennelly J said the following about the marital family, which is explicitly protected by Article 41 of the Constitution:

"The Byrnes constitute with Ann a family. This is no mere constitutional
shibboleth. Article 41 speaks of the rights of the family being “antecedent and superior to all positive law.” In my view, that is no more than the statement of the simple facts of life. People of opposite sexes meet, marry, procreate and raise children. Prevailing trends towards the recognition of non-marital and even same-sex relationships are invoked from time to time with a view to expanding the legal definition of the family. None of that arises in the present case. Even if it should become necessary to recognise the family relationships of the increasing number of couples who raise children outside marriage, such a development would be based in most cases on the natural blood bond. It would in no way undermine, but would tend to emphasise the centrality of the mutual rights and obligations of the natural parents and their children. One does not have to seek far to find that courts widely separated in time and place have accepted the need to recognise and give weight to what has been variously characterised as the blood, or natural or biological link between parent and child." (emphasis added)

Then, in a passage that probably summed up the entire case, and the view of the Supreme Court, Fennelly J said:

"The entire adoption process is postulated on the possibility that the mother of a child may withdraw her consent at any time up to the making of the adoption order. It is, naturally, a complex, sensitive process. It engages the deepest human motions. The law recognises in a very considered way that a mother may withdraw from the process. This recognises her natural right to the custody of her child and the Constitution protects that right. Therefore, the courts must consider these cases with great care. The implications of deciding in favour of the Doyles are potentially serious for the entire adoption process. Naturally, a child will be placed for adoption with suitable and carefully chosen parents. In the nature of things, bonds of atachment will be established over weeks and months. On the other hand, only the final adoption order terminates the rights of the natural mother. If the existence of established bonds is a sufficient reason for refusing to return a child to his or her natural parents, the rights of the natural mother may be undermined. This is, everyone will agree, fraught with difficulty for all concerned. It is impossible to ignore the enormous trauma involved. No decision of the court will satisfy everybody. Any decision will cause hurt. This is why it is imperative to adhere to clearly established principle. Uncertainty of jurisprudence may cause greater trauma. Clarity should enable problems or conflicts to be resolved quickly. In this case, there is a primordial constitutional principle that a child’s welfare is best served in the heart of its natural family. It is well-established and widely known. There must be compelling reasons to rebut that presumption. I do not believe that there was sufficient evidence to rebut the presumption in this case." (emphasis added)

McGuinness J, in what was one of her last judgments on the Court, said she remained "remain[ed] uncertain and apprehensive about the effects of a transfer of Ann’s custody, and about her future in general." She felt bound to conclude, however, that "the medical and other evidence before the High Court judge met the heavy burden of establishing that there were compelling reasons that her welfare could not be achieved in the custody and care of her natural parents." It is clear that McGuinness J was not entirely happy with the outcome she felt bound to reach:

"In his judgment, Geoghegan J. refers to the fact that in “some quarters” the decision taken by the Supreme Court in In Re J. has been subjected to criticism. The learned judge rightly expresses the view that unless and until the Constitution itself is amended there is no justification for that criticism. I am in agreement with this view. The judgment of this court, as expressed by Finlay C.J., reflects the unequivocal wording of Articles 41 and 42 of the Constitution, as does the judgment of the court in In re The Adoption Bill 1987 (already cited). It would be disingenuous not to admit that I am one of the “quarters” who have voiced criticism of the position of the child in the Constitution. I did so publicly in the report of the Kilkenny Incest Inquiry in 1993. The present case must, however, be decided under the Constitution and the law as it now stands.With reluctance and some regret I would allow this appeal."

The Chief Justice gave a brief concurring judgment, in which he set out the order to be made by the Court, and Geoghegan J, as with Fennelly and Hardiman JJ, gave a detailed discussion of the law and seemed in little doubt as to the correct resolution of the case.